DONALD EUGENE STAGGS, PETITIONER V. UNITED STATES OF AMERICA
No. 89-549
In The Supreme Court Of The United States
October Term, 1989
On Petition For A Writ Of Certiorari To The United States Court Of
Appeals For The Tenth Circuit
Brief For The United States In Opposition
TABLE OF CONTENTS
Question Presented
Opinions below
Jurisdiction
Statement
Argument
Conclusion
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. A1-C18) is reported
at 881 F.2d 1527.
JURISDICTION
The judgment of the court of appeals was entered on August 7, 1989.
The petition for a writ of certiorari was filed on October 4, 1989.
The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether a count charging that petitioner operated a continuing
criminal enterprise, which tracked the language of the statute but did
not set out the series of drug violations on which the charge was
based, was defective even though the drug violations were set out in
other counts in the indictment.
STATEMENT
An indictment filed in the United States District Court for the
Eastern District of Oklahoma charged petitioner and five co-defendants
with violations of federal drug, firearms, and tax laws. Petitioner
was charged with conspiracy to manufacture, possess, and distribute
amphetamine, in violation of 21 U.S.C. 846 (Count 1); operation of a
continuing criminal enterprise, in violation of 21 U.S.C. 848 (Count
3); and possession of a firearm by a previously convicted felon, in
violation of 18 U.S.C. 922(g)(1) (Count 5). Following a jury trial,
petitioner was convicted on all three counts. He was sentenced to
concurrent terms of imprisonment of 20 years on Count 1, 35 years on
Count 3, and five years on Count 5.
1. The evidence, the sufficiency of which is not disputed, showed
that from 1985 to 1987 petitioner and co-defendant Charles Teafatiller
manufactured and distributed large quantities of amphetamine in
northern Oklahoma. They employed a number of individuals to assist
them, including William Teafatiller, Charles's nephew, who testified
on behalf of the government. William first served as a guard while
other conspirators manufactured amphetamine. Petitioner subsequently
taught William to "cook" amphetamine and hired other guards. On a
number of occasions, William assisted petitioner and others in
producing the drug. They normally produced 20 to 50 pounds of
amphetamine at a time, and petitioner usually paid William $5,000 in
cash for his services. On each occasion, William testified,
petitioner took the amphetamine that had been produced in order to
distribute it. Tr. 32-72.
David Bright testified that petitioner recruited him to join the
conspiracy. After Bright had participated in a number of "cooks," he
began to assist petitioner in distributing the amphetamine. Over a
15-month period, Bright bought about 350 pounds of amphetamine from
petitioner for $10,000 to $12,000 a pound, and thus paid petitioner a
total of about $4 million. Bright sold the amphetamine by the ounce
after receiving it from petitioner. Tr. 260-281.
2. Count 1 of the indictment charged petitioner with conspiring to
manufacture, possess, and distribute amphetamine, and it included
details concerning the operation of the conspiracy. Count 3 charged
that petitioner had operated a continuing criminal enterprise (CCE) in
violation of 21 U.S.C. 848. The count first alleged that petitioner
had "repeatedly violated Title 21, United States Code, Section
841(a)(1) and other provisions of Title 21, regarding amphetamine."
Pet. App. A5. Tracking the language of 21 U.S.C. 848, Count 3
continued by alleging that the "violations were part of a continuing
series of violations undertaken by defendant DONALD EUGENE STAGGS, in
concert with at least five other persons with respect to whom DONALD
EUGENE STAGGS occupied a position of organizer, * * * and from which
the defendant DONALD EUGENE STAGGS obtained substantial income and
resources." Superseding Indictment 9.
At trial petitioner moved to dismiss the CCE count, claiming that
it was fatally defective because it failed to describe the predicate
acts of misconduct that constituted the continuing series of
violations. The trial judge denied the motion.
3. The court of appeals decided, sua sponte, to consider
petitioner's challenge to the CCE count en banc. It subsequently
issued an opinion affirming petitioner's conviction on that count,
while a panel issued an opinion disposing of various other claims of
error. /1/
The en banc court held that "a CCE indictment is sufficient where,
as here, the CCE counts charge (the defendants) in the language of the
statute, and the indictment additionally alleges at least three
violations in another count or counts." Pet. App. A7. In reaching
that conclusion, the court noted that the defendants "were not
convicted of any crimes other than those they were charged with, nor
was there evidence introduced at trial other than that alleged in the
indictment." Id. at A13. Since the indictment provided adequate
notice of the charges against petitioner, the court concluded that "it
would be both anomalous and hypertechnical to conclude that, even
though the indictment provided such notice, the notice function was
not served because of the failure to explicitly incorporate by
reference count one, containing the charged violations." Id. at A8.
/2/
Three of the ten judges dissented. Pet. App. C1-C18. While they
did not dispute that the CCE count would be adequate if it had
incorporated the other counts by reference, they considered it
defective on account of its failure to do so.
ARGUMENT
1. Petitioner does not deny that the indictment, read in its
entirety and in a commonsense fashion, provided adequate notice of the
charges against him. Nor could he. The CCE count specifically stated
that the enterprise petitioner operated had engaged in repeated
violations of the laws governing the production and distribution of
amphetamines. Other counts specified those violations. And, as the
court of appeals noted (Pet. App. A13), no evidence was admitted
relating to any crimes not charged in the indictment. /3/
Moreover, contrary to petitioner's suggestion (Pet. 5) and the
thrust of the dissenting opinion, it is clear that the grand jury
understood that it was charging petitioner with operating a continuing
criminal enterprise that had engaged in the amphetamine violations
specified elsewhere in the indictment. The CCE count, after all,
stated that the enterprise had "repeatedly violated" Section 841(a)(1)
and other laws governing amphetamines, while Count 1 charged
petitioner with conspiring to violate Section 841(a)(1) and specified
numerous overt acts performed in the course of the conspiracy.
Petitioner nevertheless contends that the CCE count is defective on
account of the failure expressly to incorporate the other counts. But
even if incorporation is required in cases such as this one, the
failure to incorporate another count or counts by reference is, at
most, harmless error if the failure does not result in any prejudice
to the defendant, as the court found to be the case here.
2. The only courts of appeals to have considered the question
presented have agreed with the court below, as the court of appeals
stated. Pet. App. A7 (citing United States v. Moya-Gomez, 860 F.2d
706, 752 (7th Cir. 1988), cert. denied, 109 S. Ct. 3221 (1989), and
United States v. Becton, 751 F.2d 250, 256-257 (8th Cir. 1984), cert.
denied, 472 U.S. 1018 (1985)). While other courts have stated in
similar settings that counts in indictments should expressly
incorporate other counts by reference, no court has reversed a CCE
conviction because the CCE count in the indictment tracked the
language of the statute but failed expressly to incorporate other
counts. To the contrary, the courts in Moya-Gomez and Becton held
that the entire indictment should be examined to determine whether the
defendant had actual notice of the charges against him.
Petitioner contends (Pet. 7) that the decision below is in conflict
with this Court's decisions in Russell v. United States, 369 U.S. 749
(1962), and Dunn v. United States, 284 U.S. 390 (1932). There is no
merit to that contention. Russell involved 2 U.S.C. 192, a statute
that makes it a crime for anyone summoned before a congressional
committee to refuse to answer "any question pertinent to the question
under inquiry." Thus, to prepare a defense to a charge of refusing to
answer it was essential to know what the "question under inquiry" was.
The indictments, however, did not state the subject of the inquiry at
issue. The Court reviewed the statements of the congressmen and
committee staff with respect to the subject of the inquiry at issue
and found "a completely confused and inconsistent account of what, if
anything, that subject was." 369 U.S. at 768. The Court accordingly
concluded that "(t)he vice of these indictments * * * is that they
failed to satisfy the first essential criterion by which the
sufficiency of an indictment is to be tested, i.e., that they failed
to sufficiently apprise the defendant 'of what he must be prepared to
meet.'" Id. at 764. In this case, in contrast, there is no allegation
that petitioner had inadequate notice of the charges against him. /4/
Dunn did not involve the sufficiency of an indictment. It dealt
with the permissibility of inconsistent jury verdicts on separate
counts. In that context, the Court stated that "(e)ach count in an
indictment is regarded as if it were a separate indictment." 284 U.S.
at 393. That statement surely has no application in the context of
assessing the adequacy of an indictment, where it is agreed that
counts may incorporate the allegations in other counts by reference.
See Fed. R. Crim. P. 7(c)(1).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
KENNETH W. STARR
Solicitor General
EDWARD S.G. DENNIS, JR.
Assistant Attorney General
MERVYN HAMBURG
Attorney
DECEMBER 1989
/1/ The panel opinion is reported at 881 F.2d 1546 (1989). None of
the issues decided by the panel are raised in the petition.
/2/ The court noted that it was equally divided on the question
whether, in the absence of a count specifying the drug charges, the
CCE count would be adequate. Five members of the court thought it
would be adequate because it tracked the language of the statute.
Pet. App. A7.
/3/ Petitioner suggests (Pet. 5) that other prosecutors might
attempt to prove the existence of a continuing criminal enterprise
through evidence that does not relate to any charge specifically
alleged in the indictment. But since the court of appeals did not
decide whether that would be permissible (Pet. App. A7) and this case
does not involve such facts, review of this case is not warranted on
account of that concern.
/4/ In Russell, the Court also noted that it was possible that the
defendants had been convicted "on the basis of facts not found by, and
perhaps not even presented to, the grand jury." 369 U.S. at 770. In
this case, in contrast, the grand jury found that petitioner had
conspired to violate the amphetamine laws and had taken various overt
acts in the course of that conspiracy, as Count 1 alleged.